October 31, 2004

How I Became the Witch of CLS

I've already been told that this is impossible and should not be attempted, but I did want to poll De Novo readers before giving up completely.

Is there any polite, socially acceptable, non-outcast-making way of asking classmates how they did on a particular bit of academic work?

I ask because I got a grade that was wholly unexpected, and I would like to figure out whether everyone got similar grades or if the professor has a particular bias toward me or if he determines scores by throwing darts at the seating chart. There's no way to figure this out without finding out what grades other people got.

However, my curiosity is not so devouring that I want to make other people uncomfortable, and having been an underperforming student for most of my academic career, I'm well aware that the direct query, "So, what did you make?" can be acutely embarrassing. Maybe I could put up an anonymous page (online or deadtree)?

October 25, 2004

Juxtaposition

Ideally, one would like to see the law schools "take back" their law reviews, assigning editorial responsibilities to members of the faculty. Students would still work and write for the reviews, but they would do so under faculty supervision. Their care in citation checking would be valued by the authors, but the tendency toward poor judgment and thoughtless impositions on authors would be held in check. Doubtless it is too much to hope for such a reform.

I used to sympathize with professors when they complained about the absurdity of giving student editors so much control over their articles, and in some cases, their professional future. It made sense to me that certain legal academics would call for peer-edited journals, and I was puzzled as to why this didn't seem to happen much. Well, the answer -- which I'm sure has been obvious to everyone that's worked on a journal but me -- is that professor-edited journals will never proliferate because professors would never, ever, ever, nerver, want to do all of the shit work that is generated by some of the messy crap that authors send us. Don't get me wrong -- I like the library just as much as the next guy. But while I'm sneezing my way thru the undergraduate library for three hours because a professor got lazy and quoted something from an Amazon.com entry, I realize exactly why it is that they give us this gig in the first place. Because we're dumb enough to do it.

The Lighter Side of Copyright Violation

Who knew that back in Bill Clinton's early days in Arkansas, the future president and his Uncle Buddy sat around and chewed the fat, ham fat to be precise, and talked about how China was one of the world's most ancient cultures and had produced Four Great Inventions, one of which was gunpowder?

Yet there it is, all that love of China and things Chinese, right in the latest bootlegged version of Mr. Clinton's autobiography, "My Life," sold on the cheap in mainland China and now retranslated back into English, most recently by Alex Beels [Columbia University Ph.D. candidate with special interest in Early Twentieth Century Intellectual Property Law] in the latest issue of Harper's Magazine. The fake version reveals a Clinton family obsessed with China's strong points, with how Chinese science and technology "left us in the dust." Readers will learn that the future president, to impress Hillary's mother, had rhapsodized about such things as the Eight Trigrams, documented in "The Book of Changes" several thousand years ago. Another retranslation of the pirated translation last summer has Mr. Clinton explaining to Hillary that his nickname is "Big Watermelon."

[...]

The pirated translations of Mr. Clinton's book also delete any references to the lack of freedom in China. But these fake publishers have certainly managed to take plenty of liberties with the text. One of the best examples is the very long opening sentence of Mr. Clinton's version, which takes 48 words to detail his birth, even the stormy weather that preceded the big event. The first sentence in the pirated Chinese version says: "The town of Hope, where I was born, has very good feng shui."

Perhaps what was gained in translation will convince Christopher Hitchens that President Clinton was not nearly as trashy as Hitchens thought him to be.

Get Well Soon, Chief

William Rehnquist has undergone throat surgery after a diagnosis of thyroid cancer, but is expected to be released from the hospital this week, according the Supreme Court.
Court spokeswoman Kathy Arberg said the 80-year old chief justice was admitted to the National Naval Medical Center at Bethesda, Maryland, on Friday, and underwent a tracheotomy Saturday.
Arberg said he is expected to be released from the hospital this week, and to be back on the bench when court arguments resume next week.

October 24, 2004

Today / October 25

Blogging a Different Debate

Because I abstained from watching the debates between the presidential candidates, I couldn't offer the live coverage provided by what seemed to be half of all other politically-oriented websites. However, I can offer blogging about one of the most controversial topics in Middle East politics, that was not directly addressed in a single debate (though indirectly referred to by Cheney and Edwards): the separation barrier in Israel and the Palestinian Territories.

On July 9, the International Court of Justice issued its opinion on the legality of the wall; unlike the Supreme Court, the World Court can offer advisory opinions upon request, in this case the request of the General Assembly. Columbia Law School recently hosted a discussion between Tal Becker and Mahmoud Hmoud, legal advisers to the permanent United Nations missions of Israel and Jordan respectively. Becker also is a CLS Ph.D candidate writing on "Rethinking state responsibility for terrorism." My notes from this event aren't much better than the ones from Volokh's talk, so be forewarned.

Becker presented Israel's perspective on the advisory opinion by the International Court of Justice, specifically some questions and problems Israel has--

First, understand the question put to the Court. The question posed to the Court in this case asked about a certain measure, the security fence, and asked only about that. Effectively, the Court was asked to look at a response to terrorism without looking at the terrorism itself.

The result was a distorted question. Some people thought the question inappropriate, and therefore opposed the resolution to put it before the Court. You're really only asking half the question, putting the Court into the position of answering a question politically convenient to one group. It's not appropriate to isolate one legal problem from the context; to do so says that it's OK to look at the responsibilities of only one side. Several judges on the Court agreed that there was something funny about isolating the question like that.

The issue of judicial propriety doesn't just refer to whether you answer the question, but also how you answer the question. Rigor, discipline etc. are especially important in answering a one-sided question. But due to the unfair nature of the question, the Court failed to live up to its function.

One of the issues is "Is an occupying power able to build a fence in occupied territory?" Morocco has a fence in Western Sahara; India has one in Kashmir. The occupying forces in Iraq have requisitioned private property to cordon off whole cities to prevent infiltration by insurgents. We can determine whether it is a necessary and proportionate response through cost-benefit analysis: at each section of the wall, is it causing more harm to one side than benefit to the other?

The ICJ statement was, "The Court is not convinced that the route chosen by Israel is justified by military exigencies." But the route presented to the Court actually is one that doesn't exist, and this kind of opaque, conclusory statement isn't good enough. You have to examine the military exigencies, you have to show that you've gone through the analysis. What about the places where the route veers into Palestinian territory, but it does so with the consent of the local population?

International law and human rights law applies in occupied territory. The Court should determine which obligations apply where, but doesn't. The Court cites Article 12 regarding free movement for Palestinians throughout the West Bank. But considering the security problems, where you don't know whether you're dealing with a combatant or a civilian, free movement becomes more difficult.

The Court's treatment of the issue of self defense was disappointing. There is a bizarre statement that Article 51 (right to self defense) doesn't apply unless a terrorist act is the act of a state. The first problem is that it is not an accurate reflection of Article 51, which only says "an armed attack." Look at the Caroline case [which may be especially familiar to those who followed the "pre-emptive/ preventative war" debateoverIraq], which is not about state-to-state confrontations. Post-9/11 resolutions indicate a trend of recognizing need of self defense against non-state terrorism. The Court mentions Israel's right and duty to protect its citizens, and its citizens are endangered by non-state terrorism.

The Court lacked the seriousness required by the issue. The Court also missed an opportunity. Even if the Court was engaged in this process, it had the opportunity to make a serious contribution. It actually played into the hands of those -- particularly in the U.S. -- who argue against international intitutions, because the Court allowed political pressure to dictate the questions, and came off as judges expressing political opinions.

To make the criticism without a transparent, reasoned analysis harms the credibility for the Court itself. This is a shame for me, less as an Israeli than as a lawyer. The lack of courage of the ICJ, in failing to talk about Palestinian obligations, can be compared unfavorably to the Israeli High Court's work. Based on the High Court petition, Israel is rethinking portions of the fence.

Becker concluded with a quotation from the High Court's ruling, which criticized the security fence:

We are aware of the killing and destruction wrought by terror against the state and its citizens. But we are judges. When we sit in judgment, we are subject to judgment. Regarding the state’s struggle against the terror that rises up against it, we are convinced that at the end of the day, a struggle according to the law will strengthen her power and her spirit. There is no security without law. Satisfying the provisions of the law is an aspect of national security. Only a Separation Fence built on a base of law will grant security to the state and its citizens. Only a separation route based on the path of law will lead the state to the security so yearned for.

Jordan's legal adviser Mahmoud Hmoud spoke then. He noted that the ICJ's opinion was 15-0 on jurisdiction; 14-1 on most other aspects, including the propriety of the fence. The significance of the advisory opinion is that it is the pronouncement of an international authority. To follow the opinion of the ICJ is to comply with the law. The UN General Assembly adopted a resolution demanding that Israel comply with the ICJ ruling, a 150-6 adoption with 10 abstentions. This is what the international community considers the rule of law. It demands that Israel complies with its obligations as stated by the advisory opinion. The Court declares what the law is.

What are the legal consequences of the wall being constructed by Israel, the occupying power? No one denies that Israel is engaged in a defensive action, but Israel cannot build the wall on land that it is not its own. The wall falls more than 99% in Palestinian territory. Other nations are fine with the wall; the problem is where it is being built. They see it as another attempt to annex land by force. The request to the World Court came after the Security Council failed to act due to the U.S. veto. The Court went further by advising the UN to act to bring a resolution to the legal issues surrounding the construction of the wall.

The Court declared that territory seized in 1967 war was occupied territory, shutting the door on the contention that such territories are "disputed." Building the wall in Palestinian territory is part of a strategy to annex the territory, part of Israel's aggressive occupation.

The Court declared a right of self determination for Palestinians, which the Court said Israel was violating. The wall is not a defensive measure, but a policy against Palestine and its population. The Court rejected Israel's argument of military necessity. The Court got information on Israel's security interests, and is not convinced that the specific course Israel has chosen for the wall was necessary to achieve its security objective or to guard Israel's essential interest.

There was a brief Q&A session at the end.

Q: How can an occupied territory have obligations?

Becker's answer: Palestinian leadership does have obligations regarding the militant groups within Palestine.

Q: Looking at the settlers as a private group, are they illegitimate and thus without a right of self defense under the Geneva Convention?

Hmoud's answer: Are the settlers advancing a military purpose? If so, then they are legitimate military targets for the Palestinians to attack. If the answer is no, why are the settlements there at all?

Becker's answer: Building along the Green Line would have been proof of a political measure, because the green line is an artifical boundary. Building there would have a tremendous humanitarian impact. Parts of the fence are there to defend people living in settlements in occupied territory. Israel has an obligation under Oslo to protect its citizens anywhere. What measures can it legitimately take to meet that obligation?

October 22, 2004

Today / October 23

Today / October 22

Today in History (1975) - United States Air Force Technical Sergeant and decorated veteran of the Vietnam War, Leonard Matlovich, is given a general discharge. A month earlier, he appeared in his uniform on the cover of Time magazine with the headline "I Am A Homosexual."

October 19, 2004

God Blessed Texas

The things you never learn when all your voting has been by absentee ballot:

Elections Administrator Robert Parten said Monday that anyone sporting a Cowboys logo at an Arlington [Texas] voting site will be told to cover up their allegiance to the team if they want to cast a ballot. He said he ordered the prohibition because of a provision on the Arlington ballot that asks whether taxpayers should help pay for a $650 million Cowboys stadium in their city.

"Anytime you go into a polling place and what you're wearing shows something that's on the ballot, that's electioneering," Gayle Hamilton, assistant elections administrator for Tarrant County, said. State law prohibits voters at the polls with clothing, jewelry or badges that promote or denounce a candidate or proposition on a ballot.

Regardless of how attenuated it may seem from politics, don't try to spread your message at the polling site.

Today / October 19

Today in History (1989) - Guildford Four convictions quashed by the Court of Appeal after the alleged terrorists had spent 15 years in prison. Gerry Conlon's autobiography was adapted into In the Name of the Father.

October 18, 2004

Understanding Blakely Without Too Much Time

If you've been feeling shy in legal gatherings where people lightly toss off references to Blakely because you haven't read it, Milbarge has come to your rescue. So wonderful, I'm hanging up my parodypen right now.

Volokh Slips Down to NYC

As noted on his own blog, Eugene Volokh will be speaking about Mechanisms of the Slippery Slope Monday, at 12:30 pm at Columbia Law school, and at 3:30 pm at Fordham Law School. I don't know about the Fordham event, but the one at Columbia is sponsored by the Federalist Society. The very short version of Volokh's paper is here, the slightly longer version is here, the 53 page version here and all 91 pages are here in html, here in pdf.

For my money, the cost-lowering type of slippage is most likely to be able to overcome the "we ought not make a sound decision today, for fear of having to draw a sound distinction tomorrow" jab at slippery slopes. With cost-lowering, especially in the literal sense, there is no distinction to overcome, except perhaps that between the expenditure of X and the expenditure of X + 1. In other words, it's a practical concern rather than a principled one, and I think practical concerns slip more easily.

UPDATE: Some notes from the CLS event below the fold. For those who object to them as sketchy and uninformative, be aware that these are probably better than my notes for most of the classes I attend. Prof. Volokh apparently was blogging immediately before the pizza arrived; I wonder what he thinks of Wikipedia's summary of his ideas, as well as the Wiki view of controversial events.

Introducing Eugene Volokh, Federalist Society president Blaine Evanson cited the Conspiracy as his greatest claim to fame, or at least as how Evanson himself knew of Volokh. Volokh joked that actually his claim to fame was having clerked for Kozinski a year before Dean David Schizer.

Prof. Volokh made great use of the overhead projector during his talk, putting up several quotes and what appeared to be bits of an outline.

"[I]t is proper to take alarm at the first experiment on our liberties.
"The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents.
"They saw all the consequences in the principle, and they avoided the consequences by denying the principle."

This was James Madison, the Fedhead himself, speaking against a threepenny tax to support religious teachers. He had a problem with the proposal itself, but some in his audience may have thought, Why make a big fuss over threepence? And so he argued that even if one found the threepenny acceptable, one should oppose it because it would result in greater demands.

Although his paper seeks to make the slippery slope respectable instead of pooh-poohed as a fallacy, Prof. Volokh also is skeptical of those who see the movement from point A to point B as instantaneous, those who say "Today this, tomorrow the Inquisition." (Perhaps because it would undercut his argument, Prof. Volokh ignored that nobody expects the Spanish Inquisition.)

"As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity…
"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters...
"It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings."

Prof. Volokh asked for someone to guess the origin of this quote. Someone who had taken First Amendment and remembered it? One student guessed Justice Holmes, but Volokh said that Holmes did not believe slippery slope arguments. He was a pragmatist who liked short steps and thought that the Court could prevent them from leading to excessive overreaching. Looking back on McCarthyism, Justice Black remarked, Holmes said that the small step would never lead to a large step while this Court sits, yet look at what has happened to the Communists even as the Court sits.

Volokh then put up the quote from the end of his law review article, regarding the slippery slope to banning smoking. The careful observer says, "this doesn’t show that the ban on machines led to the ban on smoking in public places. Even if people had blocked the ban on machines, the ban on smoking still would have happened. It’s possible that some other force led to both A and B." True, it's hard to prove that slippage has happened.

Volokh pointed out that it is not hypocritical or dishonest to dislike both A and B and make a slippery slope argument to an audience that dislikes only B. This is particularly useful with regard to people who argue against gay marriage on the grounds that it will lead to state sanctioned bigamy and incest; obviously making such arguments indicates that one thinks gay marriage is on a similar moral plane, but that does not preclude one from persuading people based on that slope.

What we'd like to know: how likely is A to lead to B? what are the mechanisms by which A may lead to B? how can we persuasively argue that A is or is not likely to lead to B?

There are many kinds of slippery slopes, and taxonomy can help identify unexpected consequences. Even if you don't buy some kinds of slippery slope arguments for a particular issue, others might be more applicable. Volokh discussed his example from the Legal Affairs piece, gun registration as leading to confiscation, and noted how his taxonomy -- alter people’s attitudes, be one of several small steps (small change tolerance), increase political momentum, increasing political power, lower cost, legally enabling -- would apply. He then turned to an example more appealing to liberals, the use of cameras on street corners for law enforcement.

The part of the talk that I found most interesting was Prof. Volokh's mention of how to avoid the slippery slope. He said that substantive constitutional rights (speech, abortion, guns) are regulation-frustrating. But they can also be regulation-enabling, since they let people vote for A with less fear that it will lead to B. For example, if the courts really enforced the 2nd Amendment as an individual right, perhaps there would be less fear of the small steps like registration because people would feel secure in their retaining the right, just as there is little fear of parade permit regulations because of the strong enforcement of the 1st Amendment.

"Someone who trusts in the checks and balances of a democratic society in which he lives usually will also have confidence in the possibility to correct future developments.
"If we can stop now, we will be able to stop in the future as well, when necessary;
"therefore, we need not stop here yet."

Another interesting point was about multi peaked preference, i.e. people who would not vote for the middle-ground or minor restriction of A, but would vote for B. Perhaps compromise A position seems cost-inefficient; once you pay for A, why not use it for B?

Prof. Volokh put up a chart of multi-peaked preferences as applied to the war on drugs. The positions varied from "Drugs are good, restrict them as little as possible" to "Drugs are good, but contempt for the law is very bad" to "A little restriction is good, but hardcore enforcement is very bad" to "A little restriction is good, and no restriction is very bad" to "Drugs are bad, but contempt for the law is very bad" to "Drugs are bad, do as much as you can to stop them." While the people who did not perceive drugs as very harmful might not vote for initial legislation to ban drugs, once that legislation was in place, they might be susceptible to an argument that the law must be enforced and thus would vote for stringent enforcement of a law that they had not voted for in the first place.

This struck me as slightly implausible, but it applies to the foreign policy realm as well. I belong among the group of people who think that while the war in Iraq may have been started for the wrong reasons, and has not been conducted well, the United States nonetheless now has a responsibility to "win the peace."

"[T]he assault weapons ban is a symbolic … The real steps, like the banning of handguns, will never occur unless this one is taken first." – Charles Krauthammer.

Why would people’s attitudes about B be influenced by legislative decision on A? There is the expressive effect of law, the normative power of the actual (we have this law, therefore we ought to have this law), and rational ignorance. Most voters are not experts on many matters, so when asked a question like whether peyote is harmful, their instinct is to look at the law. The same for the question of whether warrantless searches for dialed phone numbers are unreasonable. In a society of pragmatists without fixed ideologies, precedent of legislatures and courts can alter attitudes because they are a source of knowledge as to whether something is desirable.

Slippery slopes are a real concern, and they operate in a variety of ways.
Taxonomy may help identify nonobvious slippery slope effects – and may help us make concrete arguments. Some things might help avoid slippery slopes: substantive constitutional rights, rational basis test in equal protection.

Slippery scope: example of speech restrictions based on creating a hostile environment. This is bad not only because it could lead to further restrictions, but because the broadness of language in the initial law permits excessive restriction. On the grounds of equality, or because drawing distinctions is too administratively difficult, the government will lump all distressing speech, even that with political value, into the same restricted category.

It can work the other way as well. Over time, equality/ administrative slippery slopes led to the expansion of free speech rights. The initial decisions protecting political speech were expanded to protect pornography. Or with euthanasia – shouldn't the psychologically pained be treated equally with the physically pained?

(I had to leave for class at this point. I hadn't realized that Prof. Volokh had some Russian accent remaining. Forget the intellect; I'm in love based entirely on how he says "pooh pooh.")

October 17, 2004

America and Legal Education

Permit me, sir, to add another circumstance in our Colonies, which contributes no mean part toward the growth and effect of this untractable spirit -- I mean their education. In no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to Congress were lawyers. But all who read, and most do read, endeavor to obtain some smattering in that science. I have been told by an eminent bookseller, that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the Plantations. The Colonists have now fallen into the way of printing them for their own use. I hear that they have sold nearly as many of Blackstone's Commentaries in America as in England. General Gage marks out this disposition very particularly in a letter on your table. He states that all the people in his government are lawyers, or smatterers in law; and that in Boston they have been enabled, by successful chicane, wholly to evade many parts of one of your capital penal constitutions.

The smartness of debate will say that this knowledge ought to teach them more clearly the rights of legislature, their obligations to obedience, and the penalties of rebellion. All this is mighty well. But my honorable and learned friend on the floor, who condescends to mark what I say for animadversion, will disdain that ground. He has heard, as well as I, that when great honors and great emoluments do not win over this knowledge to the service of the State, it is a formidable adversary to government. If the spirit be not tamed and broken by these happy methods, it is stubborn and litigious. Abeunt studia in mores.

This study renders men acute, inquisitive, dexterous, prompt in attack, ready in defense, full of resources. In other countries, the people, more simple and of a less mercurial cast, judge of an ill principle in government only by an actual grievance. Here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle. They augur misgovernment at a distance, and snuff the approach of tyranny in every tainted breeze.

Today / October 16

October 15, 2004

Usage Rant #225

The price of having such a rich and varied language like English is the endless series of expressions so lame that they should escape First Amendment protection altogether. "I'm so there" is an easy target--fashionable, transient, and juvenile--but other more established phrases have mysteriously conned their way into mainstream acceptance. The particular expression I'd like to harp on at the moment, and then expunge from the language, is "no pun intended."

That expression is often a lie, in which case it makes the speaker boastful and self-important. It can also be an innocent falsehood in cases where the speaker (intentionally or not) has spoken nary a pun but some related form of word play. How obnoxious. But even when it's true--when the speaker honestly intended no pun--the expression "no pun intended" comes off a bit like explaining a joke or showing off one's ability to notice double meanings. Obnoxious yet again.

I can think of no situation for which the far superior phrase, "so to speak" would fail to substitute. It does the same work and spares the speaker the embarrassment of ostentation. A usage snob like me should know a thing or two about the cost of pretension.

October 13, 2004

Today / October 14

October 12, 2004

Today / October 12

Today in Terrorism History: In 1984 at her Brighton hotel, Margaret Thatcher survives an IRA bomb, which kills five other people. In 2000, two suicide bombers in Yemen attack the USS Cole, killing 17 crewmembers and wounding at least 39. In 2002, terrorists detonate bombs in two nightclubs in Bali, Indonesia, killing 202 and wounding over 300.

HRW Cares

I have a slight fascination with Khalid Shaikh (sometimes spelled Sheikh) Mohammed that started when Pakistan arrested him and turned him over to the CIA over 18 months ago. He looked so undramatic in the photo, more like a domestic abuser than the suspected mastermind of the Sept. 11 terrorist attacks. Since then, one hears of him intermittently; for example, this past summer the 9/11 commission's early reports of findings included information gleaned from KSM. Bush mentioned him during the first debate as an example of U.S. success in pursuing terrorists: "The killer -- the mastermind of the September 11th attacks, Khalid Sheikh Mohammed, is in prison."

At least 11 al-Qaida suspects have "disappeared" in U.S. custody, and some may have been tortured, Human Rights Watch said in a report issued Monday. [...]
The report said the prisoners include the alleged architect of the Sept. 11 attacks, Khalid Shaikh Mohammed, as well as Abu Zubaydah, who is believed to be a close aide to Osama bin Laden.
In refusing to disclose the prisoners' whereabouts or acknowledge the detentions, Human Rights Watch said, the U.S. government has violated international law, international treaties and the Geneva Convention. The group called on the government to bring all the prisoners "under the protection of the law."

I'm not sure how the U.S. government can be said to have refused to acknowledge KSM's detention, considering that Bush mentioned it in front of an audience of millions that presumably included some members of HRW. Nor, if these allegations are true, do I see a way to bring the U.S. government into line with the law. The Supreme Court ruling that changed procedures at Guantanamo Bay is unlikely to be extended to persons held outside direct American control.

October 11, 2004

Brain Drain

I saw a news article about Richard Linklater's former classmates' suing him and Universal Studios for defamation, and all I could think was, "How are these Texas residents claiming New Mexico jurisdiction?"

Oh, Civil Procedure, you have killed my joie de vivre and replaced it with Keeton v. Hustler.

As was partially -- albeit incompletely -- explained by Paperwight's Fair Shot, Dred Scott rather quickly leads one to Roe v. Wade. Although some have discussed the comparison between abolitionist reaction to Dred Scott and pro-life reaction to Roe, most have skimmed over the part of this equation that matters in terms of the question posed him: Bush's potential Supreme Court appointments.

In his book, "The Supreme Court," Chief Justice William Rehnquist presents the following as one of the "violated . . . canons of sensible constitutional interpretation" in Dred Scott:

The Court undoubtedly has the power to declare an act of Congress unconstitutional because that act conflicts with some provision in the Constitution. Judges will disagree with one another as to how the Constitution should be read in a particular case, and some may find a particular law unconstitutional while others will not. But it seems to me that even given the milieu in which the Court operated in 1857, . . . the Dred Scott opinion falls short of that minimum degree of plausibility that should be required before a court declares any act of Congress unconstitutional. . . . Taney's opinion relies on no provision in the Constitution that would even arguably make the Missouri Compromise fall outside [the Constitution's relevant] grant of power. The opinion is based almost entirely on the sense of the unfairness to southerners of preventing them from bringing with them their peculiar institution when northerners were allowed to carry property of all descriptions. But a sense that a law is unfair, however deeply felt, ought not to be itself a ground for declaring an act of Congress void.

Like the Missouri Compromise involved in Dred Scott, and unlike the subsection of the Judiciary Act of 1789 ivolved in Marbury v. Madison, the laws the Court was thus setting aside were the respnse of legislators in countless states to keenly perceived and prominently publicized problems of the day. The Court was in the process of sowing a wind, with the whirlwind to be reaped years later.

Id. at 115.

Like Bush this past Friday, Dred Scott -- through to the economic substantive due process era of Lochner -- is used to strike at the heart of the substantive due process privacy of Roe. Rehnquist's attack on the Court's decisions striking down laws about "keenly perceived and prominently publicized problems of the day" based on ideas allegedly not contained within the text of the Constitution was as much an attack on Roe as it was an attack on Lochner and Dred Scott.

Friday night was not, in other words, simply an imagery of the union of abolitionists and pro-life protesters; it was the explication by Bush of a legal theory advanced by the Chief Justice of the United States -- a legal theory that unequivocally would overturn Roe and Lawrence v. Texas and everything in between.

October 07, 2004

Only the Strong Survive

I've decided that Columbia Law School stacks our first semester with Torts, Contracts and (most of all) Civil Procedure to weed out legal dilettantes like myself. No Criminal Justice or Con Law for us -- not until we've proven ourselves by passing classes in which the phrase "haled into court" is a high point of excitement. Meanwhile, the lucky bastards at Yale, specifically Will Baude, appear to be in a Depression- era section of their syllabus.

Regarding the question of what was the proper response of the conservative judges to FDR's court-packing plan: I'm not sure how destructive it really would have been to the Court to increase the number of justices to eleven, which would have given Roosevelt the two extra votes he would need to overcome the anti-New Deal five. After all, merely because Nature was not so kind as to knock off a couple of the recalcitrant justices is no reason to think that FDR's additional appointments would be less legitimate than his substitutive ones.

The rhetoric of constitutional crisis is invoked more often than it becomes a reality. When Justice Breyer spoke at UVA's public interest law conference in February, he talked about the rule of law (afrequenttheme for his speeches) and noted, as he did in his Bush v. Gore dissent, that nowadays Supreme Court decisions are enforced consistently. Yet in the arguments in Cheney v. U.S. District Court, Solicitor General Olson kept raising the specter of a power-struggle between the executive and judicial branches if the Supreme Court required the vice president to disclose the identities of those who consulted on the administration's energy plan.

This strikes me as an overblown fear. I would have thought that if the Bush Administration were to defy the Supreme Court openly, it would be in a matter relating to the treatment of detainees. Yet when the Court ordered the administration to prosecute Hamdi properly, they released him shortly thereafter. Admittedly, this lack of hardcore conflict may be a result of deliberate accommodation by both sides; SCOTUS doesn't ask for too much (like access to lawyers for all Gitmo detainees) and POTUS fulfills the demands that they do make.

This may have been what happened with the "switch in time that saved nine" -- not a sellout on one's beliefs, but a pragmatic appraisal of how far the judiciary ought to push the other branches.

As for Carolene Products' (Products's? how to make what in this context is a proper noun, but normally is just a plural, possessive?) footnote 4, I may be misunderstanding Will's concerns:

1: Why should we think that "discrete and insular minorities" who fail to get their due from the electoral process are unlikely to be economic entities and disfavored businesses? With lots of money at stake, the incentive to illegitimately work against people via economic regulation might be stronger.

2: Even if the Carolene Products dichotomy represents a roughly plausible and sound political judgment, is it a legitimate judgment for a court of law to make? It seems both outside of the Court's jurisdictional capacity and textual bailiwick.

First of all, the part to which Will objects is prefaced by "It is unnecessary to consider now..." While this may have been disingenuous of Justice Stone, it does reduce our ability to delve too deeply into his meaning.

Second, insofar as we are to examine the footenote, it is quite clear about why one might distinguish "legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation," i.e. legislation that restricts political activity (most importantly voting, as in Nixon v. Herndon, but also First Amendment work that affects politics), from "most other types of legislation." Even if "discrete and insular minorities" are singled out in economic regulations, as in the enforcement of the ordinance struck down in Yick Wo v. Hopkins, this does not directly disable them from working to change those policies, as a regulation of their ability to vote or to organize would.

The Carolene Products decision also explains why the Court would give greater discretion to Congress in matters of economic regulation than in those of political prohibition.

But by their very nature such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it. Here the demurrer challenges the validity of the statute on its face and it is evident from all the considerations presented to Congress, and those of which we may take judicial notice, that the question is at least debatable whether commerce in filled milk should be left unregulated, or in some measure restricted, or wholly prohibited. As that decision was for Congress, neither the finding of a court arrived at by weighing the evidence, nor the verdict of a jury can be substituted for it.

The "rational basis" mentioned in footnote 4 is part of this reasoning; the Court deems there to be a rational basis for regulation on interstate commerce in a product, whereas a rational basis for regulating activities specifically protected by the Bill of Rights and 14th and 15th Amendments is more questionable.

The Dangers of Journalism

A federal judge held a reporter in contempt Thursday for refusing to divulge confidential sources to prosecutors investigating the leak of an undercover CIA officer's identity.

U.S. District Judge Thomas F. Hogan ordered New York Times reporter Judith Miller jailed until she agrees to testify about her sources before a grand jury, but said she could remain free while pursuing an appeal. Miller could be jailed up to 18 months.

Weirdly enough, Miller never wrote a story about Valerie Plame, but the person who did publish Ms. Plame's identity as a CIA employee apparently has not testified on the matter. Robert Novak goes free while Judith Miller faces prison time?

How Could You Tell?

Last night a classmate and I went to dinner downtown. He insisted on bringing a printout of an outline for our Legal Methods class, which has its exam on Friday, and we walked through Central Park discussing respondeat superior. I made him put it away at the restaurant, but he took it back out on the way home.

On the subway, as he rattled off case names and fact situations, and I answered with the relevant holdings and doctrines, I noticed two men sitting nearby smiling at us. As they were getting off at 96th St., they asked, "Are you guys 1Ls?" We admitted that we were. "Don't worry about it, you'll be fine, and no one works that hard second and third year."

Today / October 7

Today in Terrorism-Fighting History (2002) - Maher Arar deported by the U.S. government to Syria, where he was held without charges and allegedly tortured for a year, before being returned home to Canada.

October 06, 2004

Stalking Sutton

Someone at a federal court stopped by HSM today with the Yahoo search 'judge sutton and "candidate for the supreme court,"' which sent her to this post. If she's a Sutton fan, my thoughts may not be encouraging, as I think that he has a fairly clear record on civil rights and federalism that makes him likely to get blocked by Senate Democrats (without even the saving grace, in liberals' eyes, of being an unrepresented minority, as MiguelEstrada or Alberto Gonzales would be). More discussion of Jeffrey Sutton at De Novo.

Sutton appears an unlikely Supreme Court candidate in the near future for reasons beyond politics and pigmentation; having been an appellate judge for only a couple of years (as of fall 2004), he could be discounted for lack of experience. On the plus side, he seems to have been successful in keeping a fairly low profile in the mainstream media since joining the 6th Circuit. A GoogleNews search pops only one year-old piece mentioning him, and even that in a fairly retrospective way: "Business groups cheered the appointment of Jeffrey Sutton, a conservative activist, to the 6th Circuit because of his long record of opposing federal powers over the states, including a successful case that voided federal employee-discrimination laws."

This is not to say that his decisions have gone unnoted by legal observers, however. Just yesterday, How Appealing pointed to an opinion Sutton issued on behalf of a unanimous three judge panel regarding "the right to intimate association, the right to privacy and the right to be free of arbitrary state action." In August, Sutton wrote a majority opinion for an en banc 6th Circuit that preserved the federal sentencing guidelines post-Blakely.

I'll update later with a substantive look at whether even these two decisions would be likely ammunition for Senate Democrats in a hypothetical Sutton SCOTUS candidacy, but for now I think that their objections would rest on the same issues they raised when he was up for the 6th Circuit: Sutton's federalism philosophy and active advocacy, before his judgeship, on behalf of states against the expansion of civil rights.

October 05, 2004

Today / October 6

Today in Famous Murders History - In 1981, army members who were part of the Egyptian Islamic Jihad organization assassinate Egyptian president Anwar Sadat. In 1998, gay student Matthew Shepard is attacked; he dies six days later.

But for G. Gordon Liddy

[The Supreme Court s]aid no to G. Gordon Liddy, who failed in his bid to fend off a defamation lawsuit by a woman he linked to an alleged call-girl ring at the Democratic National Committee at the time of the 1972 Watergate break-in.
The court, without comment, rejected an appeal in which Liddy argued that the woman should be considered a public figure who would have to prove "actual malice" to win her lawsuit.

For those of you know Liddy only as a radio blowhard, he served four years in prison for arranging the Watergate burglary of the Democratic Party headquarters. I don't know the facts of this defamation case, but I wondered: If it was the defamation itself that made someone famous, would the defendant be able to use the "public figure" defense? For example, Monica Lewinsky was a nonentity until she was alleged to have had sexual relations with President Clinton. If those allegations had been untrue, but she did not bring suit until her name and face had been in every newspaper in the world, would she still be considered a "public figure" for the purposes of defamation?

(Of course, the whole query collapses if the only public figures are people who became famous for good reasons, as this definition implies, which means that people like Lewinsky still maintain the "private figure" standard.)

Look Alive, Blawggers

Summer is officially over -- the Supreme Court is back in session. Oyez has a rundown of pending cases. Today's Blakely-related arguments in United States v. Fanfan and United States v. Booker headline the NYTimes roundup.

October 03, 2004

Brought to Justice?

Seventy-five percent of known Al Qaida leaders have been brought to justice. The rest of them know we're after them. We've upheld the doctrine that said if you harbor a terrorist, you're equally as guilty as the terrorist. [...]
Of course we're after Saddam Hussein -- I mean bin Laden. He's isolated. Seventy-five percent of his people have been brought to justice. The killer -- the mastermind of the September 11th attacks, Khalid Sheik Mohammed, is in prison. [...] The Philippines -- we've got help -- we're helping them there to bring -- to bring Al Qaida affiliates to justice there.

Have Al Qaida leaders been brought to justice, as that term is conventionally and constitutionally understood?

I haven't keep up with the legal treatment of captured terrorists as well as I ought, but the impression I've gotten is that very few of those involved with September 11 attacks have in fact been charged with crimes, put on trial and convicted. Instead, they are held and questioned for information about past and future crimes, generally without benefit of counsel. This may well be necessary to our becoming fully informed about 9/11, but I don't think it ought to be called "brought to justice."

Al Qaida leaders have been captured, and there's no shortage of people who would see it as justice, in the sense of "getting what one deserves," to have them all boiled in oil instead of tried in accordance with American and/or international law. Nonetheless, to reduce justice to this anarchic notion of desert violates my sense of it as "the administration and procedure of law."

Honestly, I don't understand why President Bush keeps using the phrase "brought to justice" when talking about what he wants to do with the terrorists. Judging by his administration's track record, he has very little interest in bringing Al Qaida to justice, American-style. What he really wants -- and again, he might have the right idea here -- is to capture terrorists and get information out of them.

If they're kind of low level types, whatever happens to them after that doesn't appear to concern him, as we saw with Yaser Esam Hamdi. If they're high level types... well, Khalid Sheik Mohammed is in prison, he did not pass Go and collect an actual conviction on the way there, and in the 18 months since his capture, the U.S. government has evinced no plans to put him on trial.

Perhaps Bush feels that merely capturing terrorists is not really satisfying. "Capture" sounds like such a preliminary measure. We need to do something with these terrorists, and with "boil them in oil" not considered acceptable by allies such as the British, Bush has settled on the rhetorically ringing, if not technically accurate, "bring them to justice."

As for a doctrine that equates harboring a criminal with committing the crime, it may be an effective deterrent against such aid, but it hardly comports with most legal precedent.